Professional Ethics - Desklib

Professional Ethics 1
Professional Ethics
Name of Student
Institution
Instructor

Professional Ethics 2
Question 1
A fit and proper person is used to describe an individual who has integrity, honesty and
reliability in a legal profession. Judge Angula DJP stated in the case of Kamwi v The Law
Society of Namibia1 that the decision on a fit and proper person is discretionary and is decided
on a case to case basis.
The relationship that exists between a lawyer and his client or a lawyer and the general public is
one of confidence and is fiduciary in nature.2 The ability to reform would affect ones fitness and
properness due to the uncertainty whether such prospect on reform would materialize.
Question 2
The Legal Practitioner’s Fidelity Fund is known as a fund of last resort because a legal
practitioner is mandated to attempt to recover any lost money from other sources and exhaust all
the other sources before the fund is claimed. Where other sources are adequate in recovering the
lost money, a legal practitioner does not resort to the fund.3 The fund will only be resorted to
1 (A 2/2016) [2016] NAHCMD 319
2 Pattenden, Rosemary, and Duncan Sheehan The law of professional-client confidentiality (Oxford University Press,
2016) 10
3 Rohr, John. Ethics for bureaucrats: An essay on law and values (Routledge, 2017) 22

Professional Ethics 3
where there are no alternative sources or where the available sources do not adequately recover
the lost money.
Question 3
The principle of confidentiality obligates a legal practitioner to maintain a client’s secret during
and even after the lawyer client relationship ceases to exist. It is a duty derived from the
fiduciary nature which prevents disclosure of communications between a lawyer and client
except in situations where the client waves the right. In R v Derby4, the House of Lords stated
that the duty of confidentiality to a client is paramount when it arises from legal professional
privilege. The Legal Professional privilege on the other hand refers to the principle of evidence
stating that confidential communications between a legal practitioner and clients as well as
prospective clients that are obtained and disclosed in the course of offering and obtaining legal
advice. In the case of Harper & Row publishers, Inc. v Decker5, it was stated by the court that
communication could be privileged where the subject matter on which a legal practioners’ advice
is sought is employed in the performance of duties in an organization.
Question 4
4.1 The purpose of the wording without prejudice is to protect the author of a document and the
statement contained therein from being held to account based on the contents of a document and
the same being used against the maker in any proceedings before a court of law
4.2 The wording ‘’without prejudice’’ would not confer upon it the privilege against disclosure
in circumstances where the right has been waived by the parties.6
4 Magistrates Court, Ex p B [1996] AC 487
5 400 U.S. 348 (1971)
6 Dal Pont, Gino Evan. "Lawyers' Professional Responsibility." (2017) 4